2.1. Identificación del problema
3.2.3 Estados Financieros
Medical data is one of the special categories of data, for which the grounds of legitimate processing are much more restricted. Processing of medical data is in principle prohibited due to the risks for privacy and discrimination. Also here exceptions exist, like if 'processing is necessary for the purposes of carrying out the obligations and specific rights of the controller in the field of employment law in so far as it is authorised by national law providing for adequate safeguards',82 which can be linked to legitimate concerns like fitness
due to particular requirements for an employment, occupational health and safety or to determine entitlement for social benefits. Also is processing allowed when 'required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services'.83 This relates to health care in general, but also
to occupational health. Aside of expressing which purpose are legitimate, these articles also stress the necessity principle.
In employment relations the processing of medical data mostly happens during recruitment and to monitor workers' health and continuing fitness for the job. We have to distinguish between occupational health, which has a preventive task to assure that the worker's health does not get negatively affected by the work, and the evaluation of health aspects for selection purposes, which is mainly in the employer's interest. As such fitness has several aspects. First, is the worker capable in doing the job from a medical viewpoint. Secondly, to prevent occupational disease or injury. Thirdly, to protect others by ensuring that the worker does not constitute a hazard. This last aspect also concerns public health, for example in the food industry. Processing of health data also happens for social security reasons, like sick pay or advantages in case of disabilities.
Questions posed during job interviews do not always fall within the scope of data protection law, as they are not always processed by automated means or in a filing system, but are clearly related to privacy. Some countries have included specific rules in their labour laws (ex. France), made laws on the use of health information in employment context (Denmark84), have laws on medical examinations (ex. Netherlands,85 Belgium) or enlarged
the scope of data protection to the processing of personal data by non-automated means (Finland, Germany).
Questions concerning medical issues during job interviews have also been treated from the viewpoint of anti-discrimination law. Questions concerning pregnancy can lead to discrimination based on sex and are not allowed. In the case of Habermann the ECJ did not accept a dismissal based on the fact that the work was prohibited for pregnant women, given that pregnancy is only temporary and the employment contract was for an indefinite
82 Directive 95/46/EC of the European Parliament and Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, article 8.2(b).
83 Directive 95/46/EC of the European Parliament and Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, article 8.3.
84 Denmark, Act No. 286 of 24 April 1996 on the Use of Health Information on the Labour Market.
85 Belgium, Law on Medical Examinations (Wet van 5 juli 1997, houdende regels tot versterking van de rechtspositie van hen die een medische keuring ondergaan (Wet op de medische keuringen)).
period.86 The case Webb concerned a replacement for someone on pregnancy leave, but
who also got a contract for an indefinite period. Also in this case the ECJ considered the dismissal being a discrimination on grounds of sex.87
In Belgium the general data protection act provides the exceptional situations when it is not prohibited to process medical data.88 The processing is allowed, among other reasons,
when needed to fulfil specific obligations of the processor in the field of employment law, or needed for social security or public health, or for preventive health care. Written consent also lifts the prohibition, but the government can limit this possibility and has done so in employment matters, with the exception if the processing delivers an advantage to the worker.89 In general the processing of medical data has to take place under supervision of a
medical professional and have to be collected from the person himself, except when the data subject has given written consent or when needed to prevent an urgent danger or crime.
Medical examinations can take place for three purposes: monitoring of occupational health, control of sick leave and recruitment. During sick leave the employer has the right to send a physician to check the inability to work of the employee. This physician may only state his conclusion on the fitness to work of the employee and the possible duration of his inability. Other conclusions are subjected to his professional secrecy.90
The legal framework for monitoring of occupational health and selection in the private sector is given by the Act on the well-being of workers91 and more specifically by the Royal
Decree on health monitoring.92 This Royal Decree foresees obligatory medical examinations
for certain categories of workers and gives access to voluntary medical examinations for other workers, with the aim of preventing of risks. The employer is not allowed to ask medical examinations to (candidate) workers during the employment relation or for recruitment, other than for the purpose of examining a worker's fitness and those allowed in this Royal Decree.93 The Act of 28 January 2003 on medical examinations performed in
the framework of work relations94 gives more specifications on the allowed medical
examinations and tests, and applies to both private and public sector. It only allows biological tests, medical examinations and verbal information gathering concerning the health situation of a candidate worker at that moment for the purpose of examining the current fitness for a job. The use of genetic tests or AIDS-tests is prohibited, also for this examination of a worker's fitness. The government can indicate exceptional situations in
86 ECJ, Habermann-Beltermann/Arbeiterwohlfahrt (C-421/92), 5.5.1994.
87 ECJ, Webb/EMO Air Cargo (C-32/93), 14.7.1994.
88 Belgium, Act of December 8, 1992 for the protection of privacy with regard to the processing of personal data (Wet van 8 december 1992 tot bescherming van de persoonlijke levenssfeer ten opzichte van de verwerking van persoonsgegevens), article 7§2.
89 Belgium, Royal Decree of February 13, 2001 for the implementation of the law of December 8, 1992 on the protection of privacy with regard to the processing of personal data, article 27.
90 Belgium, Act on Employment Contracts (Arbeidsovereenkomstenwet), 3.7.1978, Article 31§2.
91 Belgium, Act of August 4, 1996 on the well-being of workers (Wet van 4 augustus 1996 betreffende het welzijn van de werknemers bij de uitvoering van hun werk).
92 Belgium, Royal Decree of 28 May 2003 on health monitoring (Koninklijk besluit van 28 mei 2003 betreffende het gezondheidstoezicht op de werknemers).
93 Belgium, Royal Decree of 28 May 2003 on health monitoring, article 14.
94 Belgium, Act of 28 January 2003 on medical examinations performed in the framework of work relations (Wet van 28 januari 2003 betreffende de medische onderzoeken die binnen het kader van de arbeidsverhoudingen worden uitgevoerd), B.S. 09-04-2003, 17757.
which these tests are allowed. It can also broaden this list of prohibited tests (but has not made use of this possibility yet).
Before a medical examination the worker has to be informed about which information is sought, which tests are done and why. The medical examination has to be done by an occupational health-specialist. He has to inform both the employer and employee of his conclusion on the medical fitness of the worker. This conclusion may not give any indication on the diagnosis or other information which could harm the privacy of the worker.95 Apart
from data minimisation, this also has an anti-discrimination purpose and avoids selection based on medical reason other than the fitness for the job. The employer also has to inform the worker of potential health risks connected with the job. The law on medical examinations in work relations also allows worker organisations to represent their members in legal procedures based on this law.96
The general data protection law gives everyone the right of access to his medical data directly or indirectly with the aid of a medical professional. The indirect access happens on demand of the data subject or the data controller.97 The law concerning patient rights98
provides a detailed implementation of this right of access and complements the general data protection law in important aspects like the transparency and data subject participation and control.
The Belgian courts have allowed candidate employees to lie when employers ask health information unrelated to the job or when such questions can lead to discrimination. This case law developed around cases concerning pregnancy. From the ECJ decisions on pregnancy, which concerned unlawful selection criteria, the Belgian courts deduced that also questions concerning pregnancy were unlawful.99
The Finnish Act on the Protection of Privacy in Working Life deals with health data in its section 5. It lists as legitimate purposes the payment of health-related benefits like sick pay, establishing if here is a justifiable reason for absence and the assessment of the employee's working capacity (if the employee expressly wishes this). Other laws can provide extra grounds for legitimate processing of health data. Such information has to be collected from the employee or elsewhere with his written consent.
Information on a worker's state of health may only be processed by persons who prepare, make or implement decisions concerning employment relationships on the basis of such information. The employer has to explicitly indicate the persons dealing with health data or specify the tasks that involve such processing. These persons are under a confidentiality duty. Health data needs to be stored separately from other personal data. The Act foresees one legitimate transfer of specific health data to the occupational health service, but the employee can object to such transfer.
In Germany the processing of medical data by the employer is based on the general legitimation of personal data processing for employment-related purposes where necessary
95 Belgium, Royal Decree of 28 May 2003 on health monitoring, art 48-53.
96 Belgium, Act of 28 January 2003 on medical examinations performed in the framework of work relations, art. 8.
97 Belgium, Act of 8 December 1992 for the protection of privacy with regard to the processing of personal data, art 10§2.
98 Belgium, Act of 22 August 2002 on Patient Rights (Wet van 22 augustus 2002 betreffende de rechten van de patiënt).
for carrying out the employment contract.100 The processing of medical data through
medical examinations, psychological tests or questions concerning health during job interviews have to be necessary for employment-related purposes or for carrying out the employment contract. Also consent is a possible ground for legitimate processing, if it explicitly refers to the sensitive data to be processed.101 A medical examination is in specific
cases also a legal obligation.102 The necessity of certain medical examinations has to be
judged in relation to the specific employment for which the fitness is tested. The specific employment limits the scope of medical examinations or questions. Neither the diagnosis nor the medical history may be transmitted to the employer. The physician may only transmit a conclusion on the fitness of the job applicant.103 Psychological tests have to be
treated in a similar way.104
The courts have allowed candidate employees to lie when employers cross the boundaries of what are permissible questions.105 Questions concerning the general health are not
allowed. The courts did allow question concerning contagious diseases, seen the risk for other workers, or concerning addiction to alcohol or drugs, seen the negative effect this can have on the capacity of the worker, or concerning doping, seen the criminal aspects.106
Questions concerning smoking were not allowed. Nor was a question concerning HIV- infections, except when the job entails a danger of contact with infected blood.107
Questions concerning medical issues during job interviews have also been treated from the viewpoint of anti-discrimination law. Questions concerning pregnancy can lead to discrimination based on sex and are not allowed. The same goes for questions about disabilities.108 If the disability has no direct relation to the work, employers can enquire
about it.109 The right to lie concerns not the agreement of the works council to the
questions asked.110
The right to ask questions is also limited by the agreement of the works council. The law on the works councils, in Germany the Betriebsrat, gives these councils a right of co-decision on a range of matters, including on questionnaires to or assessment criteria of (candidate) employees.111 The individual assessment is done by the employer alone.
We can conclude that based on the general data protection framework the German courts have developed a similar application concerning medical data as in the countries where medical examinations are regulated by law.
The proposal by the German government, including in the BDSG a more developed treatment of the protection of workers' personal data, codifies the basic principles of this
100 Germany, Federal Data Protection Act, § 32 Abs. 1.
101 Germany, Federal Data Protection Act, § 4.
102 Simitis, S. et al., Bundesdatenschutzgesetz, 1358.
103 Simitis, S. et al., Bundesdatenschutzgesetz, 1358.
104 Simitis, S. et al., Bundesdatenschutzgesetz, 1359.
105 Simitis, S. et al., Bundesdatenschutzgesetz, 1354.
106 LAG Sachsen, 16.09.2005, 2 Sa 318/04.
107 Simitis, S. et al., Bundesdatenschutzgesetz, 1354-1355.
108 Simitis, S. et al., Bundesdatenschutzgesetz, 1356-1357.
109 LAG Hessen, 24.03.2010, 6/7 Sa 1373/09.
110 BAG, 02.12.1999, 2 AZR 724/98.
111 Germany, Works Constitution Act (Betriebsverfassungsgesetz BetrVG), §94 ; Simitis, S. et al., Bundesdatenschutzgesetz, 1395-1396.
case law.112 The proposal of the SPD113 and Greens114 are quite similar, but both prohibit
the use of medical data to make health profiles and the proposal of the Greens explicitly prohibits certain medical tests, like HIV-tests, without knowledge of the data subjects. In general health and safety regulations provide a legal framework against which the legitimacy and necessity of medical examinations can be judged. Also the anti discrimination legislation poses boundaries to interferences with privacy, especially in recruitment. The application of the data protection principles seems not to pose many problems in this context.
More problematic is the question if certain intrusive tests may be applied, as we will consider in the following sections. Here we find more divergence, between countries using the general framework and countries which prohibit the use of certain tests in employment relations.